The international crime of gender-based persecution and the Taliban

Abstract

This paper seeks to establish that the prohibition of gender-based persecution is already part of customary international law. We begin by tracing the history of crimes against humanity and the concept of gender-based crimes in international law; we argue that their historical background demonstrates that the concept of gender-based persecution is not an entirely novel one, in that the principle of non-discrimination on the basis of sex has been incorporated into customary law through its pervasiveness in both humanitarian law and human rights law. This argument is applied to the Taliban's treatment of women, which we argue qualifies as gender-based persecution as it is understood in customary international law. For this purpose we consider the jurisprudence of international and national courts to determine what constitutes persecution. From this jurisprudence we identify and analyse the six elements that need to be established for the successful prosecution of persecution as a crime against humanity as outlined in the Rome Statute of the International Criminal Court. We conclude that the cumulative impact of the gender-based discrimination by the Taliban exceeded the threshold necessary for it to amount to persecution.